Offences Against Match Officials: Where to Draw the Line?

What constitutes an ‘assault’ in the FA Disciplinary Regulations? Where is the line to be drawn within the FA Disciplinary Regulations between an ‘assault’ and the lesser offence of ‘physical contact’? A recent decision of an FA Appeal Board has provided some much-needed clarity addressing these questions insofar as they relate to offences against match officials as outlined in paragraph 96 of the FA Disciplinary Regulations, Part D – On-Field Regulations, Section 3 (“OFR, Section 3”).[1]

The relevant case arose after a Player sprayed a referee with water from a plastic bottle and then subsequently threw the same bottle at the referee. The Player was charged by the London County FA with a breach of the FA Rules, rule E3.1 on the basis of (i) assault or attempted assault on a Match Official, or alternatively (ii) improper conduct against a Match Official (including physical contact or attempted physical contact and threatening and/or abusive language/behaviour).[2]

An FA National Serious Case Panel, sitting on behalf of the London County FA, found the charge proven on the basis of assault or attempted assault pursuant to paragraph 96.3 of the OFR, Section 3. However, this decision was overturned on appeal and replaced with a finding that the charge was proven on the lesser offence of ‘physical contact’ pursuant to paragraph 96.2 of the OFR, Section 3.

The Appeal Board’s decision is a welcome one which will assist the FA and Participants alike when they are considering charges relating to offences against Match Officials. However, the Appeal Board’s decision does not resolve all the uncertainties arising from Paragraph 96 of the OFR, Section 3.

This article will explain the background to the case, the effects of the Appeal Board’s decision and identify areas for potential development of those parts of the FA Disciplinary Regulations relating to offences against Match Officials.

Paragraph 96 of the OFR, Section 3

It should be noted that pursuant to paragraph 3 of the OFR, the OFR, Section 3 only applies to Players associated with the following teams:

‘a team competing in all divisions of Leagues at Steps 5 to 6 of the National League System playing Matches in any Competition;

a team competing outside the National League System playing in Saturday Football, Sunday Football, Midweek Football, Representative Football, Veterans Football, Further Education Football and Youth Football (as recognised by The Association from time to time); and

any affiliated team of a Club to which Categories 1 to 4 above do not apply playing Matches in any Competition’.

Nonetheless, there are significant ramifications for Players associated with such teams if they are found to have committed an offence pursuant to paragraph 96 of the OFR, Section 3.

Paragraph 96 of the OFR, Section 3 sets out three different categories of offences against Match Officials. In order of increasing severity, these are:

• Threatening behaviour;

• Physical contact or attempted physical contact; and

• Assault or attempted assault.

The Appeal Board’s decision did not engage with the offence of ‘threatening behaviour’ as this was not relevant to any of the factual issues arising in the case. However, the Appeal Board did provide some additional clarity on the applicable definitions for ‘Assault or attempted assault’ as well as for the lesser offence of ‘Physical contact or attempted physical contact’.

The offence of ‘Assault or attempted assault’ is set out at paragraph 96.3 of the OFR, Section 3:

‘96.3 Assault or attempted assault: acting in a manner which causes or attempts to cause injury to the Match Official (whether or not it does in fact cause injury), examples include, but are not limited to, causing and/or attempting to cause injury by spitting (whether it connects or not), causing and/or attempting to cause injury by striking, or attempting to strike, kicking or attempting to kick, butting or attempting to butt, barging or attempting to barge, kicking or throwing any item directly at the Match Official’ (emphasis added).

The offence of ‘Physical contact or attempted physical contact’ is set out at paragraph 96.2 of the OFR, Section 3:

‘Physical contact or attempted physical contact: physical actions (or attempted actions) that are unlikely to cause injury to the Match Official but are nevertheless confrontational, examples include but are not limited to: pushing the Match Official or pulling the Match Official (or their clothing or equipment)’ (emphasis added).

Hearing before FA National Serious Case Panel

In the original hearing before an FA National Serious Case Panel, this author submitted on behalf of the Player:

• That the definitions of ‘Assault or attempted assault’ and ‘Physical contact or attempted physical contact’ are limited to the words that are underlined in the quotations above.

• That the words that follow are simply examples which may indicate when those definitions are likely to be satisfied. Applying this proposition to the definition of ‘Assault or attempted assault’, an example will only constitute the offence insofar as a participant has acted in a manner which caused or attempted to cause injury to a Match Official.

• Accordingly, this author submitted that even though ‘throwing any item directly at the Match Official’ is listed as an example of assault, it would not necessarily follow that this would constitute an assault in every case. For example, throwing confetti at a referee would not constitute the offence because it would not be an act which caused or attempted to cause injury to the Match Official. On the other hand, throwing a large rock at a Match Official would constitute the offence as it would be an act which caused or attempted to cause injury to the Match Official. The author invited the FA National Serious Case Panel to conclude that the Player’s actions fell into the former category.

The FA National Serious Case Panel did not agree that those submissions applied to the facts of the Player’s case and found that the player had assaulted or attempted to assault the referee. The Player was sanctioned with a suspension from all football activities for five years and was required to attend a face-to-face education course (the standard minimum sanction applicable to such offences).[3]

• The Player consequently appealed against the FA National Serious Case Panel’s decision.[4] The Player appealed on the following bases:

• The London County FA misinterpreted or failed to comply with the rules and regulations relevant to its decision.

• The London County FA came to a decision which no reasonable such body could have reached.

• The London County FA failed to provide a fair hearing (it being noted that the FA National Serious Case Panel’s written reasons for its decision did not provide any analysis of the definitions of the offences of ‘Assault or attempted assault’ or ‘Physical contact or attempted physical contact’).[5]

The Appeal Board’s Decision

The Appeal Board accepted this author’s above-stated submissions in respect of the interpretation of paragraph 96 of the OFR, Section 3. In particular, the Appeal Board accepted that the offence of ‘Assault or attempted assault’ is ‘strictly limited to Participants who have acted in a manner which caused or attempted to cause injury to the match official’.[6]

Furthermore, the Appeal Board also accepted this author’s submission that the examples provided within paragraph 96 of the OFR, Section 3 are not conclusive. More specifically, the Appeal Board stated:

‘Notwithstanding “throwing any item directly at the Match Official” is listed as an example, and may be instructive in some cases, this is not intended to be determinative. Each case turns on its own facts. The Regulation expressly states it is an “example”. What is needed in addition is evidence that the action caused or was an attempt to cause injury to the Match Official. This was the clear intention of the drafters, and any ambiguity must be decided in favour of the Participant and against the regulator as a principle of legal construction’.[7] (Original emphasis.)

The Appeal Board concluded that:

• There was no evidence that the referee was injured by the actions of the football player; and

• There was insufficient evidence on the balance of probabilities to suggest that the football player intended to injure the referee.[8] In that context, the London County FA was unable to prove that the Player had assaulted or attempted to assault the Match Official.[9]

• Instead, upon the evidence available, the offence of ‘Physical contact or attempted physical contact’ against a match official was considered to be proven (and was accepted by the Player).[10] The Appeal Board considered the definition for this offence as it is outlined in Paragraph 96.2 of the OFR, Section 3 and concluded that the Player’s actions were captured within this definition. In particular, the Appeal Board concluded that the Player’s actions were ‘unlikely to cause injury to the Match Official’ but were ‘nevertheless confrontational’.[11]

The Appeal Board’s decision mirrors the precise wording from paragraph 96.2 of the OFR, Section 3 quoted above and which defines the offence. Thus, the Appeal Board’s approach to considering this lesser offence was consistent with their approach to considering the more serious offence of ‘Assault or attempted assault’ against a Match Official; their starting point in both instances was to consider the precise wording contained within the definition for the offence.

Following this case, when considering charges relating to offences against Match Officials, the focus should be on the definitions of the offences themselves rather than on the examples which follow those definitions. That is not to say that the examples will not be of any assistance when seeking to persuade a Disciplinary Commission or Appeal Board that a particular offence is or is not appropriate. However, the Appeal Board’s decision in this case indicates that the focus of any submissions would be better aimed at the definitions which precede those examples.

The decision also serves as a stark reminder for members of FA Disciplinary Commissions (including the FA National Serious Case Panel) to provide clear written reasons addressing the issues in dispute to demonstrate how they reached their conclusions and how a Participant has been afforded a fair hearing.[12]

Areas for development

Despite the Appeal Board’s decision, questions remain about how certain incidents would be treated in any future cases. Firstly, what exactly constitutes an ‘injury’ for the purposes of paragraph 96 of the OFR, Section 3? Secondly, how would spitting incidents be classified under paragraph 96 of the OFR, Section 3?

What constitutes an ‘injury’?

At the heart of the definitions for ‘Assault or attempted assault’ and ‘Physical contact or attempted physical contact’ is the word ‘injury’. With regards to the former offence, the Participant must have either (a) caused an injury to a Match Official; or (b) attempted to have caused an injury to a Match Official. With regards to the latter offence, the Participant must have carried out a physical action (or attempted action) which was ‘unlikely to cause injury to the Match official’. Consequently, how the word ‘injury’ is defined will have a significant impact on which of these categories of offence is most appropriate in any given case.

The Appeal Board’s decision refers to the uncertainty around what constitutes an ‘injury’ in paragraph 96 of the OFR, Section 3. At paragraph 22 of the Appeal Board’s decision, reference was made to the following argument advanced by the London County FA in the hearing before the Appeal Board:

‘… without specific clarity over what constitutes an injury, we would note that any action that has the potential to inflict any pain or mark on the referee falls into the threshold for assault based on the interpretation of the regulations for the 2022-23 season’.

That is just one interpretation of the word ‘injury’ advanced in this case by the London County FA. However, this author envisages that different readers would be able to offer various alternative interpretations. That is precisely the issue. How the word ‘injury’ is defined is fundamental to any consideration of the appropriate classification for an offence against a match official. If the definition for ‘injury’ is unclear, this could lead to inconsistent decisions being made by different panels who do not share the same interpretation of the word ‘injury’. The implications of this could be significant in individual cases.

The offence of ‘Assault or attempted Assault’ carries (amongst other things) a standard minimum five-year suspension from all footballing activity, compared to a standard minimum suspension of just 16 weeks for the offence of ‘Physical contact or attempted physical contact’. In that context, there are serious implications if the incorrect decision is reached in any given case. In practice, an incorrect decision could result in a Player’s career being ended prematurely in circumstances where a significantly shorter ban may have been appropriate.

In this case, the Appeal Board was able to make its decision without defining the word ‘injury’. However, unless the word ‘injury’ is defined more clearly, it seems likely that a future case will need to provide further guidance on what constitutes an injury for the purposes of paragraph 96 of the OFR, Section 3.

How should spitting incidents be classified?

Paragraph 96 of the OFR, Section 3 provides various examples of ‘Assault or attempted assault’. Amongst them is the example of ‘causing and/or attempting to cause injury by spitting (whether it connects or not)’.

Spitting at someone is regarded within society as one of the highest insults possible and a victim of spitting may feel deeply degraded. Thus, it is understandable why the FA would seek to include this amongst the most serious classification of offence against a Match Official. However, the author would suggest that including it as an example in paragraph 96 of the OFR, Section 3 was not the optimal way of achieving that objective.

Irrespective of how the word ‘injury’ is defined in paragraph 96 of the OFR, Section 3, spitting at a match official would be unlikely to cause any type of physical injury to that Match Official. Even applying the London County FA’s interpretation of ‘injury’ quoted above, spit would not ‘inflict any pain or mark’ on a match official. In that context, it is arguable that spitting is not consistent with the overall definition of ‘Assault or attempted assault’. If that is correct, it is possible that spitting at a Match Official would never constitute an offence under paragraph 96 of the OFR, Section 3, despite it being listed as an example of the offence. Instead, spitting at a match official seems to be more consistent with the definition for the offence of ‘Physical contact or attempted physical contact’ given that it is ‘unlikely to cause injury… but… [is] nevertheless confrontational’.

Consequently, this author’s view is that the under the current wording of paragraph 96 of the OFR, Section 3, spitting incidents should be classified as ‘Physical contact or attempted physical contact’ rather than as an ‘Assault or attempted assault’.

If the FA’s objective is to ensure that spitting at a Match Official carries the same level of punishment as the offence of ‘Assault or attempted assault’, then this could be achieved by amending the definition of that offence so that spitting is specifically covered. Alternatively, the same could be achieved by creating a new category of offence which specifically covers spitting at a Match Official. In any event, unless there is some reform in this regard, it seems likely that a future case dealing with such circumstances will need to address this issue.

Interestingly, this discrepancy is visible elsewhere. The FA Disciplinary Regulations, Part D – On-Field Regulations, Section 2 (“OFR, Section 2”) provides that the standard punishment applicable to players at various levels (from Sunday league football all the way up to the Premier League and FA Women’s Super League) who receive a red card during a match for a spitting incident includes a six-match automatic suspension.[13]

The relevant sending-off offence classification is described in Table 2, 4, 6 and 8 of the FA Disciplinary Regulations, Part D – On-Field Regulations as ‘Spitting at an opponent or any other person’, and therefore Match Officials are not singled out in the same way that they are under para 96.3 of the OFR, Section 3.[14] Instead, the wording of the offence classification indicates that the same punishment would apply whether a Player was sent off for spitting at an opponent, a member of the opposing backroom team, a Match Official or a spectator. Given that football clubs in this country generally have fixtures scheduled at least on a weekly basis, a six-match suspension would likely correlate to a suspension of around six weeks at most. Some football clubs (particularly those playing at the highest levels) are likely to have more than one football match per week and so for Players of those clubs, the relevant suspension might even be shorter than six weeks.

Consequently, prima facie the position is that a Premier League or FA Women’s Super League Player who spits at a match official during a match would receive a suspension of no more than approximately six weeks. On the other hand, a Sunday league Player who spits at a Match Official during or after a match could be suspended from playing football for multiple years pursuant to paragraph 96.3 of the OFR, Section 3.[15] The absence of any “Offences against Match Officials” provision in respect of players associated with clubs playing above, inter alia, Sunday league causes this difference and raises the question: is the difference in applicable automatic and standard sanctions proportionate?

While it is appreciated that:

• the FA can issue a charge against a Player otherwise subject only to a six-match automatic suspension following a red card and which could result in a greater sanction being imposed [16];

• if a spitting incident by a Player against a Match Official occurred after the player had been sent off in a, for example, Premier League or FA Women’s Super League match, then the incident could be dealt with as a non-Standard Case under the FA Disciplinary Regulations, Part E – Fast Track Regulations, Fast Track 2; and

• the standard minimum sanction applicable to offences under para 96.3 of the OFR, Section 3 firstly requires the same to be proven before a Disciplinary Commission [17],

the prima facie difference between the two automatic and standard punishments is stark.

This article will not answer the above-stated question, but it may be one that that the FA looks to revisit in the future.

This article was written by Mass Ndow-Njie, a Barrister practising at 7BR Chambers and who represented the Player in the case discussed in this article. If you have any questions about this article or are interested in instructing him on any legal matters, please contact his clerks at: clerks@7br.co.uk

Footnotes

[1] Miles Curran v London County FA, FA Appeal Board (Ch. Ifeanyi Odogwu), 2 October 2022.

[2] Ibid, [8].

[3] FA Disciplinary Regulations, Part D – On-Field Regulations, Section 3, para. 101.7.1.

[4] Ibid, para. 139.

[5] (n1), [13]-[15]; (n3), para. 139; FA Disciplinary Regulations, Part C – Appeals – Non-Fast Track, para. 6.

[6] Ibid, [17]-[18] and [33(1)].

[7] Ibid, [33(2)].

[8] (n3), para. 116.1; FA Disciplinary Regulations, Part A – General Provisions, Section 1, para. 8.

[9] (n1), [33(3)-(4)].

[10] (n3), para. 139; FA Disciplinary Regulations, Part C – Appeals – Non-Fast Track, para. 21.1-2.

[11] (n1), [33(6)].

[12] (n1), [23], [28] and [32].

[13] FA Disciplinary Regulations, Part D – On-Field Regulations, Section 2, para. 30 and 31; (n3), para. 56 and 57; FA Disciplinary Regulations, On-Field Regulations, Tables 2, 4, 6 and 8.

[14] Ibid.

[15] (n3), para. 96.3, 101. 4 and 101.7.1.

[16] FA Disciplinary Regulations, Part D – On-Field Regulations, Section 2, para. 5.

[17] (n3), para. 97-103.

29 November 2022